NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3463
CURTIS WEBB,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: May 9, 2005
__________________________
PER CURIAM.
Curtis Webb seeks review of the final decision of the Merit Systems Protection
Board (“Board”) dismissing his appeal. Webb v. United States Postal Serv.,
No. DA07520348-I-1 (Aug. 8, 2004). We affirm.
I
Mr. Webb was removed from his position in the U.S. Postal Service (“agency”) as
mail handler for alleged violation of a last chance settlement agreement. He appealed
his removal to the Board. The Administrative Judge (“AJ”) assigned to his case issued
an Acknowledgement Order in which the AJ noted that the Board might lack authority to
hear his case, because his appeal appeared to be untimely and because the terms of
the last chance settlement agreement provided that he waived his appeal rights if the
settlement agreement was broken by Mr. Webb.
The agency replied that it considered Mr. Webb’s appeal to be untimely and that
he had broken the settlement agreement. The agency also asserted that regardless of
the timeliness and settlement agreement issues, the Board lacked jurisdiction to hear
his appeal because he did not fall in the narrow category of postal workers who have
appeal rights to the Board.
The AJ then issued a show cause order to Mr. Webb, telling him that he carried
the burden of establishing Board authority to hear his case. The AJ explained that only
a narrow category of postal workers could appeal to the Board, and the AJ afforded
Mr. Webb the opportunity to show that he was either a preference eligible, a manager or
supervisor, or a personnel official in his job at the post office. Had Mr. Webb
established that he was any one of those kinds of employees, the AJ would have
considered his case further. Mr. Webb, however, did not reply to the show cause order.
Because the agency had asserted facts showing that Mr. Webb was not a
preference eligible, a manager, supervisor or personnel employee, and because
Mr. Webb had produced no contrary evidence, the AJ entered an initial decision
dismissing the appeal on the ground that Mr. Webb did not occupy a postal job that
gave him appeal rights. When the full Board denied Mr. Webb’s petition for review, the
initial decision became the final decision of the Board. Mr. Webb timely sought review
in this court.
II
We must affirm the final decision of the Board unless we determine that it is
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
04-3463 2
Where the final decision of the Board rests on findings of fact, those findings must be
supported by substantial evidence.
In this case, the Board correctly noted that it has limited authority to hear appeals
brought by postal employees. Preference eligible employees have appeal rights, but
here Mr. Webb made no showing to overcome the agency’s showing that he is not a
preference eligible employee. Substantial evidence supports the Board’s decision that
Mr. Webb cannot sustain Board jurisdiction as a preference eligible.
As for the other categories of postal workers who can appeal to the Board, a
clear line is drawn between employees who are represented by a union and those
employees in management, supervisory and personnel work who are not. Here, again
the agency showed that Mr. Webb did not work as a manager, supervisor or personnel
employee, and the record shows that he sought to pursue his rights under the union’s
collective bargaining agreement. Consequently, there is substantial evidence that Mr.
Webb is not a manager, supervisor, or personnel employee. Therefore, the Board was
correct in concluding that Mr. Webb could not seek vindication for his removal before
the Board. The Board’s decision correctly applied the law to the facts of the case. We
therefore affirm.
04-3463 3